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2004 DIGILAW 443 (GAU)

Jonali Gogoi v. Prafulla Ch. Sarmah

2004-07-21

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. This contempt petition has been filed alleging willful and deliberate violation of the final order dated 1.3.2000 passed in Civil Rule No. 5720/1998. The Petitioner was appointed as Subject Teacher in Economics in April 1987. She continued to receive her salary till September 1996. However, inspite of repeated approach when she was not paid her salary from October, 1996, the Petitioner invoked the writ jurisdiction of this Court by filing a writ petition being Civil Rule No. 5720/1998. While entertaining the writ petition by order dated 18.11.98, it was provided that the pendency of the writ petition would not be a bar on the part of the Respondents to release the salary of the Petitioner as per law. The records produced on behalf of the Respondents No. 1 and 2 revealed that the learned Additional Senior Government Advocate by his communication dated 23.11.98 duly intimated the Respondents No. 1 and 2 about the said order dated 18.11.98 and forwarded a copy of the writ application for parawise comments etc. However, it spears that no steps for filing any affidavit either admitting the claim of the Petitioner or refuting the same were taken. The writ petition stood finally closed by the aforesaid order dated 1.3.2000 issuing a clear direction to the Respondents to pay the salary to the Petitioner, both arrear and current. As regards the payment of arrear salary a time limit of four months from the date of receipt of the copy of the order was fixed. The operative part of the said order is reproduced below: That being the position, the authority is duty bound to pay the salary in as much as if that is not done that will amount to forced labour in the eye of law and shall be violative of Article 23 of the Constitution of India. Accordingly, this writ application is allowed and the mandamus is issued directing the Respondents to pay the salary i.e. current as well as arrear. The arrear salary shall be paid within a period of four months from the date of receipt of this order. The authority may deduct the amount which may have been paid in the meantime. 2. When the Respondents did not carry out the aforesaid order and did not pay the arrear salary to the Petitioner, she was constrained to move this Court by filing the instant contempt petition. The authority may deduct the amount which may have been paid in the meantime. 2. When the Respondents did not carry out the aforesaid order and did not pay the arrear salary to the Petitioner, she was constrained to move this Court by filing the instant contempt petition. This Court by order dated 15.9.2001 issued notice to the Respondents to show cause as to why a proceeding under Section 12 of the Contempt of Courts Act, 1971 should not be initiated against them. Notice was made returnable within six (6) weeks. As per office note dated 12.10.2001 and 1.11.2001, notices were duly served on the Respondents and the AD cards had been received back. To quell any doubt as to the actual service of notice on the Respondents, more particularly, the Respondents No. 1 and 2 i.e. the Secretary to the Government of Assam in the Education Department and the Director of Secondary Education Assam, the records produced on their behalf have been verified which clearly revealed that the said Respondents duly received the contempt notices issued by this Court by order dated 15.9.2001. There is also no denial on the part of the Respondents about the service of notice on them, nor there is any plea of late receipt of the contempt notice. The records produced also revealed timely receipt of the same by the said Respondents. 3. Inspite of such service of notice on them, there was no response to the contempt notice by any one of the alleged contemners/Respondents. It was admitted at the bar that the Respondents No. 1 and 2 were/are the officers responsible for implementation of the aforesaid direction of this Court. While the Respondent No. 2 maintained complete silence by not responding to the contempt notice inspite of receipt of the same, the Respondent No. 1 adopted a strange procedure by way of passing an order on 20.12.2001 on receipt of the contempt notice. By the said order, the Respondent No. 1 issued a direction to the Respondent No. 2 to examine the claims raised by the Petitioner and to determine whether she was entitled to get her salary and allowances and if found deem fit to take necessary steps. By the said order, the Respondent No. 1 issued a direction to the Respondent No. 2 to examine the claims raised by the Petitioner and to determine whether she was entitled to get her salary and allowances and if found deem fit to take necessary steps. The order passed by the Respondent No. 1 was concluded with the remark that the same was issued in compliance with the order of this Court dated 15.9.2001 in Contempt Case (C) No. 363/2001. By order dated 15.9.2001, this Court had issued notice as to why contempt proceeding should not be initiated against the Respondents. The Respondent No. 1 who could pass the aforesaid order dated 20.12.2001 on receipt of the contempt notice did not care to respond to the contempt notice by way of making any appearance before this Court either in person or through his counsel. The order dated 20.12.2001 reads as follows: GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY AND SECONDARY) DEPARTMENT ORDER Seen and perused the Hon'ble High Court order dt. 15.9.2001 passed in Contempt Case (C) No. 363/2001 in the matter of Smt. Jonali Gogoi v. Commissioner and Secretary, Education Department. The Hon'ble High Court vide its order directed Government to clear the salary with effect from October, 1996 onward. Also seen the judgment and the order of Hon'ble High Court dated 1.3.2000 against CR No. 5720/98. The Petitioner Smt. Jonali Gogoi a subject teacher of Economics in P.K.B. Girls' Higher Secondary School, Sonari, Sibsagar district, Assam working since October, 1996 without salary. It appears that her service was regularized w.e.f. 13th January, 2000. The grievances of the Petitioner is that she is not been receiving salary w.e.f. October, 1996 and she has been rendering her service in the above mentioned school. In view of the above circumstances and pursuant to the Hon'ble High Court order. Director of Secondary Education, Assam being the Appointing Authority is hereby directed to examine the claims raised by the Petitioner and determine whether she is entitled to get her salary and allowances and if found deem fit, take necessary steps in this regard strictly as per provisions of law. This is issued in compliance with Hon'ble High Court order dt. 15.9.2001 passed in Contempt Case(C) No. 363/2001. Sd/-P.C. Sharma, Commissioner and Secretary to the Government of Assam, Education Department. Mono No. ELC/COP(C)363/2001/171 Dated Dispur, the 20th December, 2001 4. This is issued in compliance with Hon'ble High Court order dt. 15.9.2001 passed in Contempt Case(C) No. 363/2001. Sd/-P.C. Sharma, Commissioner and Secretary to the Government of Assam, Education Department. Mono No. ELC/COP(C)363/2001/171 Dated Dispur, the 20th December, 2001 4. After the clear and unambiguous order of this Court directing payment of arrear salary to the Petitioner within four months, there was no scope and jurisdiction for the Respondent No. 1 to issue any direction for further examination of the matter and to determine as to whether the Petitioner was entitled to get her salary and thereby to sit on appeal over the order of this Court. 5. The apathy shown by the Respondents to the entire matter including the contempt notices issued to them did not rest thus, but continued by not responding to the contempt notice issued by this Court, hi the process the time limit of four months fixed by this Court by its order dated 1.3.2000 for payment of arrear salary to the Petitioner stood long expired and even after expiry of more than four years as against the time limit of four months, there was no implementation of the direction as contained in the said order dated 1.3.2000. The contempt petition remained pending without any steps on behalf of the Respondents. The office note dated 8.12.2003 once again reflected service of notice on all the Respondents and the case being ready for hearing. The office note also reflected that no affidavit had been filed by the Respondents. This Court by order dated 22.4.2004 after noticing that there was no response to the contempt notice issued by order dated 15.9.2001 observed that such non-response itself constituted contempt of this Court and accordingly contempt of Court proceeding was initiated directing personal appearance of all the Respondents on 24.5.2004 6. On 24.5.2004, the Respondent No. 2 made appearance before this Court along with his learned Counsel and prayed for two weeks time to take further follow up action in the matter. Upon intimation that the Respondent No. 1 has in the meantime been made the Principal Secretary, Government of Assam in the Transport Department, notice were directed to be issued to him fixing 14.6.2004 for his personal appearance. On 14.6.2004, the Respondents appeared before this Court and prayed for time till 16.6.2004 to file affidavits. Granting the prayer, the matter was fixed on 16.6.2004. On 14.6.2004, the Respondents appeared before this Court and prayed for time till 16.6.2004 to file affidavits. Granting the prayer, the matter was fixed on 16.6.2004. In the meantime, two affidavits were filed one by the Respondent No. 2 on 20.5.2004 and another by the Respondent No. 1 on 14.6.2004. On 16.6.2004, the matter was heard at length and further hearing was fixed on 28.6.2004. On 28.6.2004, hearing was concluded in presence of the alleged contemners. On conclusion of hearing, the alleged contemners were allowed to make their submissions on the quantum of punishment, in case of holding them to be guilty of contempt of this Court to which both the alleged contemners pleaded not guilty primarily on the ground that the arrear salary which was directed to be paid by order dated 1.3.2000 has been paid to the Petitioner as per order dated 11.6.2004. 7. Learned Counsel appearing for the parties made their respective submissions. While the learned Counsel for the Petitioner submitted that it is a clear case of contempt of this Court for willful and deliberate violation of the order of this Court, learned Counsel for the said two Respondents submitted that they are not guilty of any willful and deliberate violation of the aforesaid order this Court. Referring to the averments made in the affidavits alongwith the supporting documents, it was argued on behalf of the Respondent No. 2 that although he was the appointing authority, he could not disburse the arrear salary to the Petitioner in absence of any fund which was to be provided by the Respondent No. 1 and for that matter the Government of Assam in the Education Department. So far as the Respondent No. 1 is concerned, learned Counsel argued in tune with the stand in the affidavit that he was the Secretary to the Government of Assam in the Education Department for the period from 1.7.2001 to 11.8.2002 and thus after his departure from the Department, he was not responsible for any violation of the order of this Court. As regards the passing of the order dated 20.12.2001, learned Counsel argued in reference to the averments made in the affidavit that such an order was passed bonafide directing the Respondent No. 2 to examine the claim of the Petitioner. As regards the passing of the order dated 20.12.2001, learned Counsel argued in reference to the averments made in the affidavit that such an order was passed bonafide directing the Respondent No. 2 to examine the claim of the Petitioner. Learned Counsel also made submissions in reference to the stand of the Respondent No. 1 in paragraph 12 of the affidavit that the arrear salary has already been paid to the Petitioner pursuant to the order passed by this Court on 24.5.2004 which has been referred to above. 8. I have considered the submissions made by the learned Counsel for the parties and have also gone through the materials available on records including the original records files produced on behalf of the Respondents. A contempt proceeding although in its strict sense cannot be said to be an execution proceeding, yet often the same is taken recourse to by the litigants as a tool for effective implementation of the order passed in their favour. What the Respondents could not do or did not do over the last more than four years for implementation of the clear direction contained in the order dated 1.3.2000, they could do so even within less than one month once the personal appearance was given, more particularly to the Respondent No. 1 by order dated 24.5.2004. It is in this connection a reference has been made by the Respondent No. 1 in his affidavit to the said order dated 24.5.2004, relevant portion of which is quoted below: ...Thereafter this deponent on receipt of the Hon'ble Court's order dated 24.5.2004 passed in the present contempt petition persuaded the matter with the finance department and got an amount of Rs. 3,04,023/- sanctioned from the Govt. towards the payment of the arrear salary of the Petitioner from 1.10.96 to 29.2.2000. The Govt. vide order No. B(3)S-78/2002/66 dated 11.6.2004 has sanctioned an amount of Rs. 3,04,023/- (three lacs four thousand twenty three rupees only) for payment of the arrear salary of the Petitioner. 9. 3,04,023/- sanctioned from the Govt. towards the payment of the arrear salary of the Petitioner from 1.10.96 to 29.2.2000. The Govt. vide order No. B(3)S-78/2002/66 dated 11.6.2004 has sanctioned an amount of Rs. 3,04,023/- (three lacs four thousand twenty three rupees only) for payment of the arrear salary of the Petitioner. 9. It is the same very Respondent No. 1 who could pursue the matter towards implementation of the order of this Court upon ordering personal appearance by order dated 24.5.2004 and got the arrear salary sanctioned and passed by order dated 11.6.2004, ignored the contempt notice with impunity by not only not responding to the same, but also passing the abovequoted order dated 20.12.2001 stating the same to be the compliance of the order of this Court If this is not willful and deliberate violation of the order of this Court, what else would constitute the same. The Respondent No. 2 also sat over the matter simply by writing letters to the Government asking for the fund from the Government without responding to the order of this Court for the last about four years. He did not take the order of this Court arid the contempt notice issued with any seriousness. It was only after the order of this Court passed on 22.4.2004 initiating contempt proceeding against the Respondents and directing their personal appearance in view of their non-appearance inspite of service of notice on them for the last more than four year, the said Respondent entered appearance in the proceeding on 24.5.2004. On the other hand the Respondent No. 1 entered appearance only on 15.6.2004. Their such non-response to the contempt notice issued by this Court on 15.9.2001 which they duly acknowledged, itself constituted contempt of this Court taking note of which contempt proceeding was initiated against them by order dated 22.4.2004. There is also absolutely no explanation as to what caused delay of more than four years to respond to the contempt notice. While it is the shifting tendency of the Respondent No. 2 byway of shifting the burden to the Respondent No. 1 and for that matter to the Government of Assam in the Education Department, the primary stand of the Respondent No. 1 is that the order of this Court has been complied with. While it is the shifting tendency of the Respondent No. 2 byway of shifting the burden to the Respondent No. 1 and for that matter to the Government of Assam in the Education Department, the primary stand of the Respondent No. 1 is that the order of this Court has been complied with. However, there is no any explanation as to what prevented them from responding to the notices issued to show cause as to why contempt proceeding should not be drawn up against them for the last more than four years. There is also no explanation as to how the direction for payment of arrear salary could be implemented in much less than one month time upon ordering their personal appearance, which they could not do or did not do for the last more than four years. 10. From the aforesaid factual revelation, only one aspect of the matter stares on the face of it which is the apathy and non-responsive attitude shown by the Respondents to the order of this Court and even to the contempt notice for four years and suddenly reacting to the same with its full vigor upon directing personal appearance before this Court. However, the Respondents once again demonstrated their total apathy taking the things for granted after having implemented the order of this Court, by not explaining or even whispering about the delay of more than four years in implementing the order of this Court and responding to the contempt notice issued by this Court. In such a situation I am constrained to hold that the Respondents are guilty of contempt of this Court for willful and deliberate violation of the order dated 1.3.2000 passed in Civil Rule No. 5720/1998. 11. As has been observed by the Apex Court in the case of Kapildeo Prasad Sah v. State of Bihar and Ors. as reported in (1999) 7 SCC 569 , judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the Court's orders and its implications. Disobedience of the Courts order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. Disobedience of the Courts order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. In the aforesaid case the Apex Court further observed as follows: In his famous passage, Lord Diplock in Attorney General v. Times News Papers Ltd. said that there is also an element of public policy in punishing civil contempt, since, administration of justice would be undermined if the order of any court of law could be disregarded with impunity. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceeding is not a substitute for execution proceedings though at times that purpose may also be achieved. 12. For the foregoing reasons and discussions, irrespective of the implementation of the order of this Court after more than four years as against the stipulated period of four months, I am of the considered view that the Respondents are guilty of civil contempt of this Court for willful and deliberate violation of the order dated 1.3.2000 passed in Civil Rule No. 5720/1998. Even if the conduct of the Respondents is brought to the category of negligence and carelessness, same will also constitute and amount to disobedience of the aforesaid order of this Court as has been emphasized by the Apex Court in the aforesaid case. It is in that context the Apex Court observed that the power to punish for contempt is necessary for the maintenance of effective legal system and to prevent perversion of the course of justice. In the instant case, as observed above the Respondents merrily toyed with the order and even the contempt notice of this Court for the last more than four years and then suddenly woke up from their deep slumber upon initiation of contempt proceeding for their non appearance and issuing direction for their personal appearance, but for which the order of this Court perhaps would not have implemented or atleast would have been further delayed. The Respondent No. 1 even played with the contempt notice issued by this Court not to speak of implementing the order of this Court by passing the abovequoted order dated 20.12.2001. The Respondent No. 1 even played with the contempt notice issued by this Court not to speak of implementing the order of this Court by passing the abovequoted order dated 20.12.2001. Being not content with the passing of the order, he even recorded in the order that the order was issued in compliance of the contempt notice and for that matter the order dated 1.3.2000 passed in Civil Rule No. 5720/1998, although in reality no follow up action was taken towards implementation of the order of this Court and yet a colour was sought to be given that the order of this Court had been complied with. 13. For the foregoing reasons, I am not inclined to accept the unconditional apology tendered by the Respondents in a most casual manner. It gives an impression that the Respondents are at liberty to defy the orders of this Court and then to tender so called unconditional apology as a routine affair to escape from the clutches of the contempt proceeding. The entire episode as reflected above also gives an impression as if the Respondents have got the licence to flout the orders of this Court continuously with impunity and then to comply with the same upon pressure and thereby to get absolved from the liability of contempt proceeding. I am afraid such kind of ^roach on the part of the Respondents cannot be pardoned lest the same would hamper maintenance of effective legal system and would lead to perversion of the course of justice. 14. After holding the Respondents guilty of civil contempt of this Court for willful and deliberate violation of the aforesaid order dated 1.3.2000 passed in Civil Rule No. 5720/1998, the question necessarily arises is as to what punishment should be awarded to the Respondents. The punishment for Contempt of Court is a prescribed one as per provisions of Section 12 of the Contempt of Courts Act, 1971. Punishment prescribed is simple imprisonment for a term which may extends to six months, or with fine which may extend to two thousand rupees, or with both. The Respondents were asked to make their submissions on the quantum of penalty in the event of holding them to be guilty of contempt of this Court to which their only submissions was they are not guilty of any contempt of this Court. The Respondents were asked to make their submissions on the quantum of penalty in the event of holding them to be guilty of contempt of this Court to which their only submissions was they are not guilty of any contempt of this Court. I am of the considered opinion that the penalty of fine of Rs. 2000/- (Rupees two thousand) only for the Respondent No. 1 and Rs. 1000/- (Rupees one thousand) only for the Respondent No. 2 having regard to the respective gravity of the disobedience would meet the ends of justice. Accordingly upon holding the Respondents guilty of contempt of this Court for willful and deliberate violation of the order dated 1.3.2000 passed in Civil Rule No. 5720/1998, they are awarded with the penalty of fine of Rs. 2000/- and Rs. 1000/- respectively which the Respondents shall pay within one month from today. 15. The contempt proceeding stands disposed of holding the Respondents guilty of contempt of this Court and awarding the penalty against them as aforesaid with cost of this proceeding which is quantified at Rs. 2000/- to be home by the contemners in equal shares. The Registry will ensure implementation of the penalty and realization of the cost.